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Trump Administration Keeping Families Separated Without Basic Due Process

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Parents Who Raise “Red Flags” Deemed Ineligible for Reunification Without Process That Comports With Basic Child Welfare Principles

As hundreds of children continue to suffer in federal government facilities, the Trump administration continues to deem some parents “ineligible” to be reunited with their children based on criteria that neither comport with basic child welfare principles nor carefully consider the best interests of the child.  

According to Vivek Sankaran, professor and director of the Child Advocacy Law Clinic at the University of Michigan Law School, “children should only be taken from their parents when…there are exceptional circumstances such as imminent danger of serious or substantial harm, and that no other condition short of removal can safeguard the child’s well being.”  

When a child is taken from a parent, parents are generally entitled to the information used to assess the danger or harm, a hearing, and, in many cases, legal counsel. Under the Trump administration’s zero tolerance policy, none of these standards were or are being followed.  Instead, when they originally took the child away from the parent, the government claimed a “red flag” without providing details. Subsequently, officials have been slow to respond to requests for details, and have provided no avenue for appeal or hearing, let alone counsel for parents and children.  According to the New York Times and the New Yorker, it is the ACLU and other advocates that have stepped up to demand basic due process for these separated families.

Miriam Jordan for the New York Times writes about the ongoing family separation crisis and parents who are deemed “ineligible” to be reunited with their children:

While the government has complied with a federal judge’s order to return most of the nearly 3,000 children taken from their parents as part of a clampdown on illegal border crossings earlier this year, federal authorities have deemed some parents, like Mr. Barrera, “ineligible” for reunification because they have a criminal history or have raised other “red flags.”

In some cases, parents have a record of child or sexual abuse. But immigrant advocates say that in many instances the crime is minor and has no bearing on the parent’s ability to care for the child. Few of the cases, they say, would cause an American parent to forfeit the ability to care for a child.

… Several hundred families are yet to be reunited, including many in cases where the parents were deported. But the most contentious group of those excluded from reunification consists of parents the government has determined do not qualify. A few such cases were raised in federal court last week; with a continuing impasse between the A.C.L.U. and the government, the judge will likely have to rule on the fates of these cases.

The government has “a legitimate interest in continuing detention of individuals who posed a flight risk or danger to the community or others in a family detention facility because of that person’s criminal history,” Justice Department lawyers said in a legal filing that cited some of the court’s own standards for review. The question of whether that violates parents’ rights to due process, they added, should be dealt with in “individualized inquiries.”

Jonathan Blitzer at the New Yorker takes a look at the administration’s absurd eligibility requirements to reunite families:

Immigrants-rights advocates have argued that the government is making eligibility determinations based on nebulous evidence. But, for a number of reasons, lawyers have not yet had a chance to raise their specific concerns with the judge. On Thursday, that will change: attorneys from the A.C.L.U. and the Department of Justice are expected to brief Sabraw on two parents who’ve been deemed ineligible to be with their children, the first of some thirty cases that the A.C.L.U. may contest in the coming weeks, according to Lee Gelernt, the group’s lead attorney. “These two cases are especially pressing because they involve toddlers,” he told me earlier this week. “We’ve heard that the kids—and parents—are suffering horribly from the separation.”

On Monday, I spoke with one of the parents, a thirty-one-year-old asylum seeker from El Salvador who asked to be identified by her middle name, Ivette. She is in a detention center in Laredo, Texas. Her lawyers, from the National Immigrant Justice Center, a group based in Chicago, put money on her phone card so that she could talk to me. Every fifteen minutes, an automated voice interrupted us, in Spanish, to tell us our time was up. Ivette called back twice, speaking in a soft but unwavering voice.

Ivette travelled to the U.S. with her three-year-old son in March, two months before the government formally announced its zero-tolerance policy. Three days after they were apprehended while crossing the border near McAllen, Texas, Border Patrol agents separated them. Ivette was transferred to an ICE  detention center nearby, while her son was sent to a children’s shelter in Chicago. It was a month before they spoke by phone, she told me, and their first call lasted less than ten minutes. “Before my son came on the line, they told me, ‘Don’t let him hear you cry, and tell him he needs to eat,’ ” she said. (He’d stopped eating after arriving at the shelter.) Since then, Ivette said, the government has arranged five phone calls between her and her son, each about seven minutes long. The first few times they spoke, he was more animated, she said, calling out to her and occasionally singing songs. But over the last few months he’s gradually stopped speaking. “I talk and talk to him,” Ivette said. “But he stays silent.” Her son’s case worker told her that he’s been struggling to understand people when they speak to him; he has also reverted to needing diapers, and frequently has accidents.

Judge Sabraw had set a deadline for the government to reunite parents with children under the age of five by July 10th. More than a week passed before Ivette was told that she was not considered eligible, which she only discovered after lawyers took up her case and pressed the government for an explanation. On July 20th, ice finally produced an arrest warrant from El Salvador that accused her of being involved with “terrorist organizations,” an allusion to the country’s notorious street gangs. (In 2015, the Salvadoran Supreme Court declared the gangs “terrorist groups.”) Ivette told me, “It was the first time I had ever seen or heard about the warrant.”

… By law, the U.S. government is responsible for insuring that the children in its custody are reunited with parents who will not cause them harm. But serious questions remain as to whether the Trump Administration is going too far in denying these parents the right to see their children, particularly since the government separated the families in the first place. At the end of last month, the Trump Administration listed thirty-five cases in which parents had disqualifying criminal histories. According to the A.C.L.U., the number is closer to fifty.

Ur Jaddou, Director of DHS Watch, a project of America’s Voice, said: “It’s time this administration finally puts the welfare of children first. Instead of continuously finding ways to justify the cruel and failed family separation policy by clinging to ‘red flags’ that would not hold up in U.S. family courts, the Trump administration should use their resources and power to transparently share information with parents and their lawyers and to facilitate fair hearing. Child welfare experts agree family unity is paramount unless there are truly ‘exceptional circumstances’ and ‘no other condition short of removal can safeguard the child’s well being.’ Unless those criteria are met, the goal should be to safely reunite children with their parents as quickly as possible.”